November 03, 2008, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
Arbitrator: William J. Renahan
Decision Date September 29, 2008
Orlene West was injured in a motor vehicle accident on December 5, 2005. She applied for and received statutory accident benefits from RBC General Insurance Company. RBC terminated weekly income replacement benefits and housekeeping benefits on April 3, 2006. The parties were unable to resolve their disputes through mediation, and Ms. West applied for arbitration.
Ms. West was 30 years old at the time of the accident on December 5, 2005. She had a four-year old daughter and two sons aged eight and 12 at that time. She worked for two employment agencies that referred her to temporary jobs such as packaging and taking inventory. Ms. West preferred working afternoons or night shifts so that she could prepare her children for school or daycare and take them to the buses that took them to school. Sometimes she declined work so that she could care for her children in the morning and afternoon when they returned from school. In the year of the accident, she worked about 11 weeks and in 2004, she worked about seven weeks.
The accident occurred on a city street as Ms. West was slowing to make a left hand turn behind a tractor-trailer. A vehicle traveling in the same direction in the adjacent lane drove into the passenger side of her vehicle.
Entitlement to Income Replacement Benefits:
Ms. West was taken to hospital by ambulance, diagnosed with back and right trapezius strain and released the same day with a few pills. Ten days after the accident, Ms. West attended the hospital because of dizzy spells and fainting. The hospital doctor that saw her reported that she mainly described aches and pains in the shoulder as well as the back and in the neck as well as neck stiffness. She also told the hospital doctor that after the motor vehicle collision she actually had an episode of syncope and passed out in the car but when the paramedics came to see her she was with it. She had four days of just feeling generally dizzy.
The hospital doctor also noted that the rest of her functional inquiry was unremarkable. In particular she denied any headaches, visual disturbances or speech abnormalities. There were no focal or global neurological deficits. She denied any vertigo symptoms and just told the hospital doctor that over the last few days she had felt dizzy. Ms. West had normal x-rays of the neck, back, shoulder and chest.
In March 2006, an assessor at an insurer´s Functional Capacity Evaluation reported that Ms. West said that she began to experience dizzy spells, heart palpitations and chest pain in late December 2005.
The notes of Ms. West´s family doctor indicated that she suffered dizzy spells before the accident. Ms. West said that it was due to pregnancies. The arbitrator heard no medical evidence or argument connecting Ms. West´s dizzy spells after the accident to the accident.
Ms. West testified that her injuries were pain on the right side, chest pains, mild headaches a couple days after the accident, shoulder pain, upper and lower back pain, pain in the right leg, sore arm, tingling in the left foot and the top of the right foot and stiffening in the right calf. She testified her back pain was worse and that at the time of the hearing, except for her back and right foot, she had recovered.
The first mention in the documents of foot problems was contained in an in-home assessment dated May 15, 2006, five months after the accident. The first mention in the documents of post-traumatic headaches was in a treatment plan dated May 25, 2006, again, five months after the accident. The previous month, Ms. West reported that she did not have headaches.
In April 2006, Ms. West attended a doctor at Downsview Health Recovery Centre, who reported no headaches. However, on May 25, 2006, the doctor reported for the first time that Ms. West suffered from headaches and he continued to report that she suffered post-traumatic headaches. The arbitrator heard no reasonable explanation as to how the accident caused headaches five months after the event. Similarly, the first documented complaint relating to the feet is five months after the accident. Again, the arbitrator did not see the connection between the foot pain and the motor vehicle accident.
Ms. West was psychologically assessed in May 2006 and was diagnosed with an Adjustment Disorder with Mixed Anxiety and Depressed Mood. RBC funded the recommended 6 to 8 counseling sessions.
The doctor at Downsview testified that she suffered from chronic pain syndrome. This is the only evidence the arbitrator heard that in any way related to a psychological impairment. Even if Ms. West suffered a psychological impairment, the arbitrator was not satisfied that it was connected to the accident.
Ms. West´s shoulder pain gradually improved and was no longer an issue some time in 2007. Her other complaints, including headaches, feet and arm problems arose several months after the accident and the arbitrator heard no reliable evidence to connect them to the accident. Ms. West experienced dizziness and fainting before the accident, and the arbitrator heard neither reliable evidence nor any argument that the dizziness and fainting she experienced after the accident were caused by the accident. Ms. West´s most serious complaint after the accident and only consistent complaint was low back pain.
Essential Tasks of Employment:
The test for entitlement to income replacement benefits was whether Ms. West suffered a substantial inability to perform the essential tasks of her employment.
Ms. West´s lawyer proceeded on the basis that the essential tasks of Ms. West´s employment were that of a full-time worker at United Parcel Service in the shipping and receiving department. She stood for an eight-hour day unpacking cell phones and then repackaging them with manuals, pamphlets and accessories. Ms. West had performed this job for three weeks. The testimony and documentary evidence were consistent that Ms. West was employed by two temporary employment agencies as a general labourer. Besides UPS, she worked in the shipping departments of other companies doing similar work as well as stores like Canadian Tire stocking shelves and helping customers. She also worked as a security officer.
The essential tasks of Ms. West´s employment were therefore the abilities to travel to and from work on public transit for one hour each way and to stand for an eight-hour shift doing light manual work. The assessment also included a consideration that Ms. West was a temporary worker and worked about 11 weeks a year with weeks or months off between jobs.
The Downsview doctor had certified that Ms. West was substantially disabled from work, but he had no knowledge or record of what her work was. He testified that he completed the disability certificates on the basis that he must have known what her work was and that she must have told him that she had difficulty with work.
Ms. West testified that she called her boss at UPS to tell her that she would like to try to work. Her boss said she could not come back on a trial basis and that she had to be 100%.
Ms. West testified that she applied for a lot of different jobs involving light work but was not hired. She testified that she was turned down because of her back injury. It was not clear why she applied for work when she told her prospective employer that she could not work because of a back injury. She did not say when she applied. She started a security guard course in 2006. She traveled by bus for about 45 minutes to school where she attended classes three to six hours a day.
The test for Ms. West was whether she sustained a substantial inability to engage in temporary, light employment. By her own admission, she thought she was well enough to try this work at the time RBC terminated income replacement benefits. The arbitrator found no reliable evidence to the contrary. Accordingly, she was not entitled to further income replacement benefits.
Ms. West felt that she was well enough to try to work around the time of the hearing. The arbitrator heard no evidence as to why she could not try to do her housekeeping. Nor did he hear any explanation why her housekeeping assistant did not testify as to the services she allegedly provided. The evidence regarding housekeeping expenses for the six-month period starting four months after the accident was minimal and not persuasive.
Ms. West´s family doctor sent her to a clinic where she was treated by a chiropractor. She attended three or four times a week for more than four months. She then attended Downsview Health Recovery Centre for the next six months. The arbitrator heard no evidence to explain why she changed service providers or who referred her to Downsview.
Ms. West described the treatment she received at Downsview. She said she received treatment for her upper and lower back mostly and massage and back exercises. She did the ball and the string and the treadmill and stretching. She described the effects of the treatment as good and bad and that she improved with the Downsview treatment. She said she went for treatment when she felt she needed it, which was two to three times a week and that a driver picked her up. This is all Ms. West had to say about the treatment she received at Downsview. It was not persuasive.
The Downsview doctor saw Ms. West after she had received more than four months of treatment at another clinic. The doctor testified that if a patient´s pain persists after three months, it is chronic pain. He testified that Ms. West had chronic pain, although he was not able to point to any such specific diagnosis in his records or his disability certificates or treatment plans. He testified that the fact that Ms. West had chronic joint dysfunction meant that she had chronic pain, although he did not testify which joint or joints had this condition. His explanation of how Ms. West developed post-traumatic headaches six months after the accident was that it was reasonable to him. The doctor at Downsview testified that he continued to treat Ms. West because she derived benefits. He did not describe the treatment his clinic performed and was unable to describe what treatment he performed.
The doctor at Downsview saw Ms. West after she had undergone four months of treatment with little improvement. According to his definition, she suffered chronic pain at that time. Like Ms. West, he provided no detail of the treatment Downsview provided, including the chiropractic treatment he provided. Over the next nine months, he continued to recommend and provide treatment with the continuing expectation that Ms. West´s disability would last only a further 9 to 12 weeks. His treatment did not satisfy his expectations, yet he continued to render treatment. His explanation was that he thought it was reasonable and Ms. West benefited from the treatment.
Ms. West´s recovery did not meet the Downsview doctor´s continuing expectation that her disability would last only 9 to 12 weeks and then another 9 to 12 weeks and so on until nine months had passed. Despite Ms. West´s recovery not meeting his reasonable expectations, the Downsview doctor did not think it was necessary to consult anyone, including Ms. West´s family doctor. He just kept recommending and rendering treatment, which did not satisfy his reasonable expectations, and at the end of it all, he said she had chronic pain.
It was not clear what treatment Downsview performed. Nor was it clear that Ms. West received any benefit from the treatment. Ms. West´s recovery continued to fail to meet the reasonable expectations of the doctor at Downsview. The arbitrator found that the treatment was not justified, not reasonable and not necessary.
Ms. West claimed for examination fees conducted after her income replacement benefits were terminated. The In-home Assessment report repeated and accepted Ms. West´s claims that she could not do her chores. The assessing doctor concluded that performing housekeeping would hinder Ms. West´s healing without explaining why. The report did not shed any light on Ms. West´s ability to do housekeeping or her need for housekeeping assistance. The assessing doctor did not bring any expertise to the issue and therefore the cost of the In-home Assessment report was not reasonable.
The Job Site Assessment report repeated uncontradicted factual information about Ms. West´s work. The recommendations that Ms. West be instructed in biomechanical and ergonomic efficiency and the effects of sustained posture and that she engage in a work-hardening program and a conditioning program did not involve the application of any expert medical or rehabilitation knowledge to Ms. West´s position. The cost of the report, therefore, was not reasonable.
The Functional Abilities Evaluation purported to be a scientific assessment of Ms. West´s ability to function. The assessor found maximum effort in the hands. He concluded that Ms. West could not perform as she did prior to the accident. He recommended further therapy. One month earlier, Ms. West underwent a Functional Abilities Evaluation at a Designated Assessment Centre. The assessor found that Ms. West did not make maximum effort. The assessor did not have sufficient data to make a firm conclusion with regards to effort level. The arbitrator had no evidence to explain why two similar assessments done about one month apart reached different conclusions as to whether Ms. West made maximum effort. The arbitrator did not know why the assessor performed an assessment one month after the DAC assessment. The arbitrator was not satisfied that the Functional Abilities Evaluation performed was more reliable than the one conducted at the Designated Assessment Centre or that the second assessment was reasonable.
It is clear from the summary that the arbitrator did not find that the evidence, either from Ms. West, or from the treatment providers, was sufficient to convince the arbitrator that Ms. West should receive income replacement benefits, medical services, housekeeping or examination fee reimbursements. It is very important that the evidence be carefully considered and reviewed, in this case, even before the mediation process was commenced, to properly assess the merits of the case that has to be met.